And the Case Against their Protective Governmental Allies Asserted in the Public Interest by the 83 Co-Plaintiffs in OSGATA et al. v. Monsanto*
The Continuing Need for Court Relief Both farmers and consumers need to say NO to Monsanto to stop them from harassing farmers and filing or threatening to file patent infringement lawsuits when organic, biodynamic, and other non-transgenic crops have become contaminated by Monsanto’s transgenic crops. Because Monsanto refused to provide an Enforceable Covenant not to sue farmers who do not want their technology despite making a weasel-worded and self-admittedly vague promise not to sue in the case of undefined “inadvertent” or “trace” contamination, a Declaratory Judgment is needed from the court to protect farmers against the continuing threat.
The Binding Covenant derived from Monsanto's court statements by the Appeals Court of the Federal Circuit does only one percent of the needed job. The other 99% still remains to be accomplished. The Appeals Court at least validated our issues and did not impugn us, as Judge Buchwald did in New York, but we still have a long way to go, and that is why we are now petitioning the Supreme Court to allow our contentions to be heard by the federal district court. We cannot walk away. The issues are too important. Accepting the decisions delivered so far would be out of the question.
Before the Appeals Court decision, farmers have considered the Monsanto “promise” a meaningless sham because Monsanto could interpret it as they wish and change it or withdraw it at any time. Now, the interpretation of the rule of estoppel establishing a Binding Covenant for contamination less than 1% is almost meaningless, because small amounts of contamination are hard and costly to find and trace amounts soon become more than trace amounts through pollination and also through soil contamination. That is the problem with the Appeals Court decision, and it makes that decision a cruel joke, except that damage suits are now possible for those who can catch the contamination when it is less than one percent. That is difficult, but not impossible, though the vigilance costs time and money.
The finding of the three judges by the Appeals Court of the Federal Circuit in determining that Monsanto effectively gave a binding covenant for “trace” contamination below one percent is an arbitrary, capricious, pusillanimous, and even devious response in the face of the continuing need for broader court relief. The Appeals Court’s decision mocks the need for justice even if it does more than Federal District Judge Naomi Buchwald did in writing her even more corporately subservient, disrespectful, rude, abusive, and condescending dismissal decision.
The Appeals Court does validate on principle the need for a our lawsuit where Judge Buchwald was punitive in her attitude against it, but in providing only minimal rectification, it essentially addresses only a tiny fraction of what is needed while ignoring the rest of our complaint as if it did not exist. It uses a minimal response to blow off our larger issues as if nothing more was needed. In that it is a more clever dismissal than the one written by Judge Buchwald, but it is a pro-corporate, pro-patent dismissal serving to protect the close and profitable relationship between Monsanto and the political establishment.
Serious health and environmental issues are at stake underneath the contentions we make in our complaint, and they need to be heard. In the face of these, the courts have not served the public interest. They have protected the profligate corporate interest, and that is an equally profligate legal atrocity.
The main value of the Appeals Court decision lies in protecting the ability of those contaminated less than one percent to sue for damages without threat of a countersuit for patent infringement. Within that narrow window, Monsanto is prevented from using patent infringement claims to block damage claims. The campaign of intimidation is one percent stopped, so that is helpful for a small group of contamination cases if they are found—as they probably will not be.
Monsanto pursues intimidation as the core tool of its business strategy, and when one farmer is intimidated anywhere in the nation, other farmers get the message. That has been the way the game is played, and all farmers understand what is likely to happen if they stand up against Monsanto, their allies, and their customers. When a settlement is reached with particular farmers who cannot afford the time or money of an extended legal fight, they are gagged against speaking about what happened to them, and they are prevented from participating in a lawsuit against Monsanto in the future.
The Veiled Threat
The Monsanto “promise” not to sue for inadvertent, trace contamination was and continues to be (for those contamined above one percent) more a veiled threat than a reliable commitment. “Trace” contaminantion could reasonably be defined as any amount up to 10% or even maybe 15%, but Monsanto has not defined what they mean. They still have not provided any definition apart from the minimal defintion provided by the appellate judges.
The Appeals Court now enables Monsanto to freely claim patent infringement for any contamination above one percent. With one percent as a very low, almost meaningless, hard-to-find threshold of contamination, most contamination will quickly grow to more than that amount through soil contamination and pollen drift, which is the same way weeds develop resistance to Monsanto’s herbicides. They pick up the trait from the soil. New crops planted subsequently in the same soil will also pick up the transgenic traits. This spreads the contamination as much or more than the spreading of pollen.
When Monsanto advertises the use of its pre-trial settlement income for charitable purposes, such as scholarships for rural students, they are also stating a veiled threat against farmers who might have their crops contaminated by Monsanto’s transgenic crops. Approximately 500 farmers are investigated by Monsanto every year for what Monsanto calls “seed piracy,” and most of the threatened farmers settle without going to court.
Farmers know the judicial deck is stacked against them under the court-accepted “strict liability” standard making the possession of the patented item illegal no matter how it came to be possessed. The OSGATA co-plaintiffs call this a perverse abuse of common sense, but most farmers would rather avoid legal contest when most of the judges have shown themselves to be on the side of Monsanto’s monopoly over the major commodity crops. The Appeals Court weakened “strict liability” now by only one percent. That is the effect of their decision, and it helps very little. It is a practical charade.
Government for the Corporations and Against the People
Unjust and counter-intuitive U.S. patent law has been used to intimidate farmers and force acceptance of Monsanto’s seed market domination. At issue is the same question prominently before all three branches of the U.S. government: Should the corporate interest in pursuit of short-term, deregulated, opportunistic profits and a myopic, penny-wise and pound-foolish benefit for farmers trump the long-term public interest in health, food safety, and environmental protection? The answer is: No, it should not, but you would not know that from the behavior of the Congress, the White House, and now two courts.
The allowable cost to the public health and the environment of abusive corporate profit pursuit should be zero, but the courts, the Congress and the executive agencies of the government have allowed it to be astronomical. When we get our day in court, we will illuminate this reality. We will reveal the myopic folly of both the Federal District Court and the Appeals Court Decisions, but they do not want allow us our day in court, certainly because they know we will reveal the government’s abusive collaboration with corporate interests. Apparently, they would not want anyone calling attention to their Pay-to-Play system or trying to change it.
These are the values exhibited by all three branches of the U.S. government, and that has made people cynical. This is a part of the modern process turning cynicism into a self-immobilizing virtue promoted to immobilize citizenship and turn the people docile against their own health and other best interests.
In a nation where moneyed interests have been made more important than pursuit of wisdom, integrity, ethics and morality, the people need to stand up to demand better if they are not equally myopic and immobilized in support of Monsanto’s transgenic project. When the need for our lawsuit is rejected by the courts, it only shows the size of the problem needing to be addressed. It shows that the pro-corporate, money-worshiping disease infects the courts as much as it does the White House, the Congress, and both major political parties, though one of them has been slightly worse than the other.
So far only a small portion of the U.S. people understand the costs they have had to shoulder, but when they understand more, a revolution could begin either at the ballot box or in the streets—or maybe in both places if the people are not preoccupied and have not been fed so much denatured food they cannot get up off the sofa anymore. Very few public officials will likely be exempted from the wrath if their role in it can be clearly established in the public mind. That could be a major reason the courts do not want our lawsuit and our arguments to be heard. It would derail the transgenic gravy train and increase public attention to all the ways the U.S. governing system is not working and seems unlikely to work without major changes from the grassroots up.
One indication of the changing public attitudes has been a poll released in early November 2013. For the first time ever, 65% of the polled people want to vote out their own member of the Congress. In the past, many people have commonly been critical of the Congress as a whole while defending the work done by their own member of Congress. Now, that has changed, and it is a big change in the public attitude. Now maybe the next step will be to find out if the people are ready to demand a Constitutional Convention to change the entire government from top to bottom before it embarrasses the nation and its reputation any worse than it has already.
Human Rights Against the Power of Corporate Money
The above paragraph succinctly states the issue at stake through our lawsuit for the international respect of the U.S. democratic ideal; it is a question of human rights against the monopoly and oligopoly power of corporate money. When Judge Naomi Buchwald found in favor of the Monsanto Company on February 24, 2012, refusing us a day in court, she found in favor of the power of corporate campaign funding and incessant lobbying just the same as if she was a politician sustaining the power of corporate money in service to her own reelection as a member of the Congress or a first-term U.S. President. Worse, she did her work with punitive hostility as if she were a slavemaster before slaves with a whip in her hand.
Public officials on every side do no differently when they protect Monsanto’s interests on a host of matters from protection against transgenic food labeling and atrocious protection against court injunctions blocking release of transgenic crops without independent, objective, careful, and thorough long-term investigation. Many egregious examples of this behavior can be cited, and they are discussed in other places on this Web site. If members of the Congress had time to do their job and could make time for that when they have to spend so much time raising funds for their next campaign, they might have examined the folly in the so-called Doctrine of Substantial Equivalence or the Quayle declaration in 1992 calling transgenic food “Generally Recognized as Safe.”
The government has become a see-no-evil, hear-no-evil ally of corporately profligate transgenic agriculture and an ally of Monsanto against the interests of the people. When we finally gain the opportunity to have our contentions heard, we will establish the reasons why this is true, but as has been seen, so far, the judicial allies of the political establishment want to prevent us from having that opportunity. They write sanctimoniously about “standing” to sue, but that is no more than smoke and mirrors for those dumb enough, oblivious enough, confused enough to accept it. We have a bigger human rights issue against Monsanto over the abusive use of patent law than Homer Plessy did against Judge John H. Ferguson in 1896 before the U.S. Supreme Court, and “separate but equal” was not greater a bigger act of judicial sophistry.
Only one reason exists to explain the failure to accept this contention at face value: the judges do not want the whistle blown on a continuing political charade. No other conclusion is possible when the governing reality is fully understood. Demands for independent safety and nutritional testing are ignored by the government, but the courts ought not give this abuse a free pass as Judge Buchwald did in dismissing our lawsuit and requiring us to appeal her decision. Then, the Appeals Court also gave the Buchwald atrocity a free pass. When the revolution finally comes in public attitudes, if it comes, these questions could be addressed. The source of the trouble will be known.
In our view, judges should come down on the side of the people, protecting their interests, not the short-sighted and destructive, profit-pursuing corporate interests. Often corporations are short-sighted by their nature and the need to produce quarterly results, and that is a reason moral vision is lost from U.S. culture. With morality missing from the corporate vocabulary, it is lost from the culture, too, when corporations become politically dominant. When unbridled corporate plutocratic oligarchy is tolerated, endorsed, and promoted by court decisions, admirable democracy is trashed and impugned as much as our lawsuit was by Judge Buchwald.
Abuse of Patent Law
When farmers see the way judges have treated them, they realize they do not have much chance of getting justice, and that is a reason many settle when they come up against Monsanto’s legal power. Even if they feel they have a good case, they have settled. That happens because they do not have the time or the funds to fight and extended legal battle, and they do not want to face the extensive harassment. This could be the reason Judge Buchwald might have thought we would crawl back under the porch if she attacked our contentions brutally and told us our behavior was not to be tolerated. It that, she understood us wrong.
Once farmers settle out of court the assertions Monsanto has raised against them, and they are gagged against talking about what has happened, it is only possible to know that many farmers have chosen not to become involved in a costly legal contest. Some farmers believe they have had the facts to win against Monsanto’s claims, but they chose not to fight because they know the stories of others who have pursued an expensive legal contest and ultimately lost just because of the onerous injustice of the “strict liability” standard overruling common sense.
By looking at publicly available information about known lawsuits, farmers have been able to see the amount of money the effort has required. Some have mortgaged their farms or sold land to pursue the legal fight, but most others have not considered that a good option. As one example of the kind of legal fight being waged, Vernon Bowman studied the law at home at night because he was already in bankruptcy from other prior events, and he represented himself until a patent lawyer in Seattle volunteered to help him. His case, Bowman v. Monsanto was decided by the Supreme Court in May, 2013.
The Bowman ruling does not affect our arguments in OSGATA et al. v. Monsanto, because Bowman contended only about a particular interpretation of the doctrine on patent exhaustion, one that did not prevail. From the start it was unlikely to prevail even if it needed to be tested all the way to the Supreme Court and put on the record. In their decision, support for Monsanto’s patents was made clear. No hesitation was seen about the virture of patenting transgenic seeds, and no desire was seen to constrain the Monsanto gravy train to help broke farmers out. The only surprise in the Bowman case was that Supreme Court chose to hear it at all—and issue their own specific affirmation of the decision by the lower courts. Perhaps, they wanted to make fully clear that the doctrine of patent exhaustion does not apply to biological products capable of reproducing themselves as part of their fundamental nature. The Bowman case did not raise any other issue, and thus it was too narrow to address many other issues still needing to be addressed, including the issue we are raising about the invalidity of Monsanto’s patents.
Monsanto’s patents have no provable public utility beyond the ability to lower farming costs over the short-run and the ability to create profit for Monsanto. Some might count the wages paid to lobbyists and the campaign contributions to politicians as economic benefits, but they are not fundamentally productive uses of capital. They use too much money without building anything useful. Both uses of money divert it away from valuable public purposes. They both might be more costly to the public need, and the nation might be better off if both were outlawed. Shown is emphasis on the value of corporate and elite control, and because of that, use of funds for something publicly useful is evaded.
Whatever benefits are achieved come at extremely high longer-term public cost, but the U.S. political system has not been noted for its ability to produce effective visionary thinking. To the contrary, expediency is the national hallmark. Monsanto’s project never would have been allowed if the United States was not a culture where short-term expediency is more important than wisdom and morality.
People around the world see the expedient, myopic U.S. character more clearly than it is seen in the United States, and because of that, a revolution against the U.S. governing model might be imposed from abroad before it arises from within the U.S. population. This might have occurred already if other nations did not have so many of their own issues needing to addressed first. The pot cannot call the kettle black, even if the U.S. kettle maybe blacker when all of the incurred public costs are understood.
Monsanto’s Market Control and Aggressive Litigation with Government Support
Because Monsanto has been able to settle its disputes with farmers in the St. Louis Federal District Court where judges have been friendly toward the company’s interests, they have been able to maintain their agricultural dominance despite the harm caused by their farming methods. In the adhesion contract agreed to by every farmer when they open a bag of Monsanto’s seeds, all disputes must be settled in the St. Louis court close to Monsanto’s headquarters, but none of the plaintiffs in our lawsuit want to open any bags of Monsanto’s seeds, so our case was not required to go before the St. Louis court. Nonetheless, Monsanto plans to seek a change of venue if the case is sent back to Federal District Court. From Judge Buchwald, they might get it. She has not shown the curiosity, interest, or maybe the patriotic diligence to deeply investigate the issues at stake in our lawsuit.
The combined circumstances of market control and aggressive pursuit of patent-defending litigation have given Monsanto monopoly power over major crops, including especially: corn, soy, sugar beets, canola, and cotton as well as over farmers growing these crops. New crops resistant to more toxic herbicides than Monsanto’s Roundup are now in the USDA approval pipeline under new a “fast track” procedure, and these new crops are being provided because weeds have become resistant to Roundup and its active ingredient: Glyphosate. With typical myopia, they do not seem to be worried about the prospect that weeds will also become resistant to the more aggressive herbicide and thus need even more aggressive chemicals within a few years.
“Strict Liability” and Crop Contamination
Under the “strict liability” principle in patent law, the only important fact is possession of the patented item without having paid a royalty. Contamination can be spread by cross-pollination, insects, windblown seed, the droppings of birds and animals, convective air currents, and soil microorganisms. If pollen rises on a convection, it can be brought down by rain or by a temperature inversion.
As more transgenic crops are approved, the contamination will be spread more widely, increasing the peril faced by farmers wanting to grow organic, biodynamic, and other non-transgenic crops―as well as by the consumers wanting to consume non-transgenic food. Consumers can be contaminated by Monsanto’s transgenes just as much as soil microorganisms, weeds, and many crops beyond those that have been patented.
Contamination is the objective, and through it control over agriculture and farmers is extended. Transgenic alfalfa was needed for this reason. It is pollinated by bees, traveling more widely to spread the transgenic pollen. The trouble is: Monsanto’s technology also kills the bees, and that is as big a public cost as the other public health and environmental costs. About 30% of the food people eat depends on pollination by bees. Even though there are other pollinators, they are not as efficient as bees. Butterflies are another pollinator, and they are under threat as perilously as bees, and there are not as many of them.
The impact of Monsanto’s transgenic Bt toxin on bees is not yet understood, but the impact of neonicotinoid pesticides has been identified, and even though the pesticide Clothianidin is mady by Bayer, Monsanto uses it to coat its seeds and protect them before the transgenic Bt toxin kicks in. Because of that, it is part of the Monsanto transgenic seed technology. The trouble arises because the Clothianidin is persistent in the environment. It does not dissipate.
Pursuit of Farmers for Possessing Transgenicly Contaminated Crops
Monsanto reportedly maintains a staff of 75 with an annual budget of $10 million to find farmers who possess their patented crops without having paid a royalty. This staffing is bolstered through the use of “security consultants.” In the United States Pinkerton has been used, and in Canada retired RCMP officers have been employed.
In addition to farmers, Monsanto has also sued at least one seed cleaner for helping farmers clean and save seeds that may have become contaminated. This would have been done to strike fear into other seed cleaners and make it more difficult and costly for them to legitimately pursue their livelihood. It would be a part of the campaign of intimidation they have aggressively pursued.
To avoid risk, seed cleaners would need to test all the seed they clean to make sure none of it is contaminated by Monsanto’s patented transgenes. That would be an unreasonable cost to impose, especially when some parts of a crop may be contaminated and not other parts.
Monsanto requires farmers to buy new seeds from them every year both because they change the gene stack from year to year and because their technology is not genetically stable once all the additional alien genes have been inserted into it. If they did not change the seed and take out new patents following the introduction of the variations, they could charge a farmer an additional royalty for planting his saved seed a second year or any subsequent year. They do not want to permit that, and the annual purchases provide them with increased control and more information about what farmers are doing.
Through the dealers Monsanto tracks both the sales of seed and the sales of herbicide, because they require buyers of their seed to buy only Monsanto herbicide to use with the seed. They closely monitor the sales to make sure contract violations do not occur. Some farmers might want buy their Glyphosate herbicide from a different source, because others provide it more inexpensively. For example, China has become a major producer of Glyphosate herbicide, and the Chinese product is cheaper than Monsanto’s Roundup. The formulation of other included ingredients is also different. The courts have supported the Monsanto program requiring a new purchase every year, because the requirement is written in the contract farmers accept when the seed is used. Just as the established principle of patent exhaustion applicable to other products after the first sale has not been accepted by the courts after the first sale of patented seeds, so also has the mandatory integration of the two parts of the technology: seeds and the associated chemicals. That is part of the contractual requirement.
The cost of the seeds and the chemicals is higher, but that is more than offset by the savings on tillage costs. Farmers have easily accepted the higher cost seeds and chemicals because of the saving on the higher costs—even if very few of them want to eat the food resulting from them. The system makes farming easier and cheaper, and that is the essential fact of Monsanto’s technology. That is the provided benefit.
When Monsanto sued Hugh Bowman, it was not because he had not accepted the system and followed the requirements for his early season crop. He got in trouble because he wanted to find a cheaper source of seed for his late season planting. That crop is more risky, so reducing costs was an important objective.
Now that the courts have prohibited Bowman from cutting corners on cost as he did, he might not want to plant a late season crop anymore. That decision has not been reported, but it would be logical if he feels the risks of the late season crop are too great to warrant the use of Monsanto’s seeds. The legal principle, now newly enunciated by the Supreme Court in Bowman v. Monsanto in May, 2013 is especially relevant in the case of farmers who do not want to utilize or have anything to do with Monsanto’s transgenic technology.
Patent exhaustion would not now apply to any farmer wanting to make use of Monsanto’s technology, but we believe it should or could still apply in any case where farmers have no intention and no desire to make use of Monsanto’s technology. This is a justification for requesting the Declaratory Judgment from the court. In Bowman, the Supreme Court found that Bowman was not a passive agent; he was actively making use of the technology for its intended purpose, but in the decision, they said, “In another case, the [seed]’s self- replication might occur outside the [farmer’s] control.” That statement suggests that the right to sue for patent infringement could reasonably become exhausted in a case where use of the technology was inadvertent and not intended.
Contaminating Everyone, Including Both Farmers and Consumers
Monsanto’s behavior shows a company desire to assert control over both food and farming through patent ownership over any transgenic crops not grown under their license as was the case with Percy Schmeiser in Saskatchewan. Judgments received as the result of contamination in both the United States and Canada have allowed them to tighten their control, intimidate farmers, and cause them to avoid Monsanto’s scrutiny in every way possible.
At the same time, Monsanto’s has continuously promoted public ignorance about their program, so the public would not understand what is going on. Their effort has included their effort to fight off all effort to have food containing their transgenic ingredients labeled. They have also preserved ambiguity about what they would do in the case of contamination by leaving their commitments ambiguous and unenforceable.
Monsanto and other biotech agribusiness companies have prevented consumers from knowing the transgenic content of their food even though citizens should have both a constitutional right and a natural right to know about anything that might threaten or compromise the safety and healthfulness of their food. They should especially have this right when the threats result from man-made technology introducing novel proteins never found in food before, and this technology introduces new allergens, toxins, diseases, anti-nutrients, and introduces a range of afflictions.
The assertion of a constitutional right against threats to their safety is interpreted from the 9th and 10th Amendments in the Bill of Rights and also from an extension derived from the 2nd Amendment. Because the 2nd Amendment addresses the need for a well-regulated militia to protect the public safety and security, it is logical to extend citizens the right to organize in other ways to protect against threats to their safety not addressable through the collective use of arms but needing the organized use of different implements in service to the same purpose. This is a common sense interpretation of the meaning and intention of the 2nd Amendment. When Monsanto has been able to pursue and maintain a monopoly to assert its profit interests against the public interest, the public should be entitled to a right of self-defense. Monsanto has maintained continuous patent control by making small product changes and taking out new patents before the old patents have expired, and they maintain their position as the largest seller of Glyphosate herbicide by contractually requiring buyers of their seeds to buy only their chemical.
The patent on Roundup ran out more than a decade ago, but Monsanto continues to be the largest seller of Glyphosate-based herbicide because of the contract with seed users requiring them to use the specified Monsanto herbicide. These realities pose an unhealthful threat against the public welfare, and the people should have a right of self-defense against the threats being posed. Access to information may be the most important element of this self-defense, but Monsanto and the government along with their other allies have denied people access to the needed information the same as if they were denied the right to form a militia for purposes of self-defense.
Other sellers of Glyphosate herbicide exist in the U.S. and abroad, but they cannot gain market traction as long as Monsanto’s transgenic seeds are the dominant market driver, and their contractual requirements are ironclad. Meanwhile, all use of Glyphosate herbicide should be banned because it has more dangerous health impacts than DDT, and it has these impacts in very small quantities with multiple adverse impacts. More needs to be known about these impacts than existing studies have yet determined, but the amount of available information is improving as the result of recent studies, including one advanced at MIT in Cambridge, Massachusetts and released in 2013.
Infertility impacts and birth defects have been widely documented in other nations, including those reported by Dr. Andres Carrasco in Argentina, but because of the ability of Monsanto to use it patent power to block research in the United States, the U.S. reports are only anecdotal and mostly only about animals. Few have drawn the connection with the massive increase in the number of fertility clinics in the United States, from around 30 before Monsanto’s transgenic agriculture project got started to over 500 almost two decades later.
Monsanto’s Behavior Is a Consumer Issue As Well As a Farmer Issue
The Public Right to Know About Their Food
In 2012 in California, 61 sellers of transgenic food and four of their trade associations spent almost $46 million on scare-tactics and issue-distorting advertising to defeat Proposition 37 on transgenic food labeling and to prevent consumers from knowing about the transgenic content in their food. Of this money, Monsanto contributed over $8 million, the largest of the corporate contributions to the effort. The proponents of the initiative were only able to raise about $10 million, and their advertising did not influence the battle waged through television spots until after almost half of the California voters had already cast their votes through early voting.
In 2013, another labeling initiative in Washington state, Initiative 522 or I-522, was on the ballot in 2013, and the results were similarly close with the rural counties opposing the initiative and several counties around Seattle supporting it. In Connecticut and Maine as well as one house of the legislature in Vermont bills have been passed. The Vermont Senate could not take up the bill before the session ended, but it will be taken up in January 2014. The Connecticut and Maine bills require other states, some of them neighboring states to pass similar bills. Action remains possible in several other nearby northeastern states, but in many the power of Monsanto and its allies in lobbying and providing campaign contributions is likely to overrule the will of the people. That has been seen already in many places, including the U.S. Senate
In a total of about 26 states labeling bills have been introduced, and they have also been introduced in the U.S. Congress. In 2012 and 2013, votes on labeling in the U.S. Senate revealed 3 to 1 opposition, despite multiple national polls showing about 90% of the public wants transgenic food labeled. The U.S. Senate votes clearly show that most senators put corporate interests ahead of the public demand for transgenic food labeling, and that will continue as long as the voice of the people is weak and unorganized compared to the biotech corporations and their allies in the Grocery Manufacturers Association and the Snack Foods Association.
The Intimidation of Vermont over Transgenic Labeling
In 2012, a labeling bill was not voted on in the Vermont legislature after Monsanto’s allies threatened to sue the state if it was passed, and in 2013, Vermont’s Governor Shumlin said he still would not favor passing a bill that could be challenged in the courts as was an earlier Vermont bill requiring milk containing Monsanto’s recombinant bovine growth hormone (rBGH) to be labeled. This court fight occurred back when Howard Dean was Vermont’s governor. The state law required the labeling of milk from cows injected with the synthetic, genetically engineered hormone because of widespread fears about health dangers from it, but the Circuit Court ruled for Monsanto and required Vermont to pay Monsanto’s court costs.
Atrociously, the court said the state could not force labeling contrary to Monsanto’s right of free commercial speech, but since then, the market for rBGH milk has mostly evaporated as major companies stopped selling it. The people took the matter into their own hands in the market place. With less demand, the market dried up, and Monsanto sold the growth hormone business.
The market for non-transgenic food is growing similarly as Whole Foods reports in 2013 a 15-30% increase of sales for products carrying the Non-GMO Project certification. In March 2013, 300 new product applications were made to the Non-GMO Project. The search is on for non-transgenic ingredients to replace the transgenic ingredients, and that story made it onto the business pages of the New York Times.
The Vermont law was not much different from a law requiring health warnings on cigarettes or a law requiring food sellers show salt and sugar content, but the court said that Monsanto could not be forced to provide a label that was adverse to their commercial interests even if the people suffered health consequences. The decision on rBST showed corporate interests once again more important in the United States than the interests of the people.
The circuit court’s decision supported Monsanto’s contention claiming knowledge about use of their products would lower their sales. Preserving corporate sales was found to be more important than public health and the public right to know. The United States has become a nation where public ignorance is preferred because the power of corporations in the poltical system has so far convinced courts, legislators, and many citizens to prefer it. In California on Proposition 37, a majority voted in favor of ignorance as if they were ostriches voting for the right to keep their heads in the sand. Some voted against the proposition because they habitually vote against all propositions, but many feared that labeling would cause the price of food to rise. The corporate advertising asserted that argument, and many people seem to have believed it. Decisions like these make clear the necessity of arguing the issues before the public at the same time they are argued in the courts and before state legislatures. They are also an argument for better public education. This is a reason for launching this Web site. Not only are courts influenced by public opinion but they also could not rule against a strong tide of public sentiment without discrediting themselves and the judicial system in the eyes of the people. They can only make blatantly pro-corporate decisions against the public interest when the people are not paying attention. The behavior of the Congress and the President will also be the subject to similar scrutiny as the public becomes more informed. An informed public must be our goal.
President Obama has been discredited for failing to respond to petitions on the White House Web site and before the FDA on the labeling of transgenic food. The White House Web site has not fulfilled the commitment to respond to the public despite over a million total signatures on the issue. The failure to serve the public interest shows the President’s commitment to the biotech interest, and the praise given to Secretary Vilsack for his service to biotech agriculture further shows his attitude. To make it worse, President Obama stated his support for the labeling of transgenic food when he was campaigning in Iowa in 2007, but he has not acted to fulfill the statement made. That suggests the statement was only campaign rhetoric he did not intend to fulfill.
Washington politicians show they are drinking Monsanto’s Kool-Aid in the belief that Monsanto’s products are not dangerous. Either that or they are more responsive to the corporate interest despite the public dangers. Both may be true with a range of attitudes found in Washington, but questions need to be raised about the power of biotech corporate campaign contributions to determine whether or not the public interest has been sold out. Either way, the facts need to be made clear along with the position of the President and his appointees.
Stopping the California Ballot Recount
Advocates for the labeling of transgenic food may have worked harder in 2013 before the vote in Washington state on I-522, but a similarly close outcome has emerged. The final officially-reported vote count on Proposition 37 showed defeat by only 2.8%. Anomalies in the vote counting and balloting were investigated by an outside group, but an independent recount of the ballots was stopped when the Republican Fresno County Registrar of Voters, Brandi Orth, imposed exorbitant and allegedly illegal costs on the group doing the recount. Time is needed to investigate and sort out the contentions, but before that can happen a new Proposition may be put on the ballot in 2014. No word on that has emerged at the end of 2013. A new petition drive would be needed along with a new round of fund-raising.
State legislative hearings and court cases may also be needed, but a new ballot proposition might be quicker givenMonsanto’s power among judges and in the legislature. Nonetheless, the rules on recounts in California still need to be repaired. By Election Day 2014, more states may have acted on the labeling bills that have been introduced. The California legislature could also enact a labeling bill, but that seems unlikely in view of the lobbying power of the food industry in the state. If a new initiative wins, it will show once again that the initiative process is needed to give a voice to the people when elected officials speak mostly for corporations and against the needs and desires of the people in protecting their health.
Official Refusal to Discuss the Vote Counting Anomalies
Both California Secretary of State Debra Bowen and Orth refused a request in February 2013 from Brad Friedman of Pacifica radio in California to discuss the vote counting issues on the air. That suggested they had something to hide or something they did not want scrutinized. If they had wanted full transparency and felt their behavior was as it should be, they would have showed up to answer all remaining questions. Through their failure to appear, they discredited themselves as public servants. Public servants always need to be accountable before the people, and when they are not, they should be voted out of office unless their opponent is worse!
Transgenic trespass does not occur only in farmer’s fields, it also occurs against the health of consumers―and against the political system and democratic integrity through the tactics seen by Monsanto and its allies in California, Vermont, Washington state, Washington, DC, and elsewhere throughout the nation and abroad, though Monsanto capitulated and withdrew from its European efforts to win favorable regulations in early 2013. Perhaps, they wanted to focus all their resources on the battles in more promising markets like the United States, India, China, or African and South American nations. In Brazil, a court awarded farmers billions of dollars in royalty refunds. The case is on appeal in 2013, and the outcome is awaited. Finally, in both the United States and other democratic nations, Monsanto has been able to use its resources to intimidate farmers, frighten consumers, repress public dissent, and lock-in support from politicians through campaign contributions, lobbying, political alliances, and the creation of astroturf organizations advancing their pro-biotech agenda much as was done during the fight over tobacco and the health problems it caused. Money spent by opponents of Proposition 37 in California and I-522 in Washington state was spent to maintain public ignorance and keep people confused.
Monsanto’s Misuse of Patent Rights Against the Public Interest
At the core of the issues being raised is the failure of independent, objective analysts to prove the healthful and nutritional value of Monsanto’s products, but in the United States, Monsanto uses its patent rights and its contractual power to control research and prevent the release of any findings from any research they do not like. Against this abuse of the public need, we believe we can disprove all of Monsanto’s contentions and with that, if the court accepts our arguments: stop the abusive use of patent infringement lawsuits as a means of intimidation and also overturn their patents because they also fail to serve the public need.
We believe we can present evidence needed to render their patents invalid, unenforceable, and the company undeserving of damages or royalties from farmers whose non-transgenic crops have been contaminated by Monsanto’s transgenic crops. Our interest is in growing safe, healthful, nourishing food people and animals know how to utilize as the result of their biological evolution, and this interest should give us standing against Monsanto even aside from anything else. They are a threat against our ability to do that, and that should be enough. If existing court precedents are upheld as the result of our appeal to the Supreme Court, and we are given our right to have our lawsuit heard, as we believe we should be, the continuing threat against us caused by Monsanto’s crops, the “strict liability” standard, and their patent misuse will be confronted. If justice prevails, as it may not, given the decisions against us so far, we believe we will be able to help protect the public need for safe, healthful food against continuing harm. We will not stop Monsanto from selling its products, but we will help to improve public knowledge, and that could stop them. If no one wants to buy their products, they will need to find a more responsible way to earn a living.
Needed now from the Supreme Court is effective reversal of the decision by the Appeals Court of the Federal Circuit affirming the dismissal by Judge Buchwald in New York. Then we will also need to win against another dismissal motion Monsanto’s attorneys are planning to file if a reversal is won from the Supreme Court. The appeal petition was filed before the Supreme Court in September 2013, and the decision about whether or not the Justices want to take the case will be learned by early in 2014.
If the argument before the Supreme Court is not successful, a different lawsuit may be needed. When Thurgood Marshall and the NAACP were working on the civil rights lawsuits against racial segregation, they had to file many lawsuits before they finally got to Brown v. the Board of Education of Topeka, Kansas. This may prove to be a similar struggle, but failure is not an option. The issues are too important and the stakes too high not just for us but for everyone—and for all life. The point is not to force our view on the people the same way Monsanto has forced theirs. The point is to find he truth, and if that cannot happen in any other place, it needs to happen before the courts if they do not want to ignore that obligation and assert sophistry instead.
Summary of the Lawsuit’s Legal Arguments: Our contentions, as outlined by our attorneys at the Public Patent Foundation in our court complaint, include the following four objectives in support of ending the continuing threat of patent infringement lawsuits and the associated harassment of farmers:
1. Patent Invalidity: Monsanto’s patents should be declared invalid because they do not meet the basic public utility requirements of patent law they should have met before the patents were ever issued.
2. Farmers Growing Non-Transgenic Crops Have Not Infringed: Farmers should not be held liable for infringement of Monsanto’s patents when they are found to possess contaminated crops on their farm; the “strict liability” principle in patent law fails to pass a common sense test in the case of biological contamination. It is perverse, and the “exhaustion” principle should supersede it when non-transgenic crops become contaminated and no desire exists to make use of Monsanto’s technology.
(Again, this is a different application of the patent exhaustion principle from the one tested in the case of Bowman v. Monsanto in early 2013. Bowman was evading the need to pay a royalty and asserting patent exhaustion as the reason. The Bowman argument was not sustained because he was intentionally making use of the patented technology and thought he had found a way to avoid paying for it. The court decided against him. In the case of contamination of a non-transgenic crop where farmers are not intentionally trying to exploit Monsanto’s transgenic traits, the outcome should be different.)
When there is no desire to exploit Monsanto’s technology, and there is a clear desire to avoid it, as there is with farmers who choose to grow organic, biodynamic, and other non-transgenic crops, the Supreme Court’s enunciated principle overruling patent exhaustion for self-reproducing seeds should not apply. Monsanto should not be able to profit when their customer’s crops contaminate others who want nothing to do with their crops and for whom they are endangering, but they have done that, and some farmers have felt they had to cave in to their bullying tactics.
Monsanto has used viral marketing, monopolistic market domination, and aggressive investigations backed up by overpowering litigation to overcome opposition to their technology and to assert it as the dominant agricultural system in the United States and some other nations. That is a misuse of patent rights.
3. Patents Unenforceable: Monsanto’s patents should be unenforceable because they have been illegally misused to achieve and maintain anti-competitive and monopoly advantage.
4. Monsanto Should Not Be Awarded Damages: Monsanto should not be entitled to damages or royalty payments from contaminated farmers trying to grow non-transgenic crops. Monsanto has not suffered a loss when these farmers’ crops are contaminated. Only the damaged farmers have suffered a loss.
*The 83 co-plaintiffs became 74 co-appellants after Judge Naomi Buchwald’s case dismissal was appealed to the Court of Appeals of the Federal Circuit. The appeal was made on the grounds that Judge Buchwald failed to consider essential uncontroverted facts and precedents and also because she chose to accept undocumented oral assertions by Monsanto’s lead attorney made without any supporting evidence. The appeal was supported by an amicus brief filed by a national group of professors of patent law as well as by an amicus brief filed by a group of supporting organizations. The nine plaintiffs who dropped out of the appeal continue to support the lawsuit’s objectives. Their reasons for dropping out are not known, but they have the right to drop out anytime they want without stating the reason. Perhaps they feared the possibility they would be asked to pay Monsanto’s court costs, because that has happened in the past when the plaintiffs’ contentions have been rejected by the court.
When the petition to the Supreme Court was filed, an additional plaintiff dropped out, and that reduced the total number of appellants to 73.